3. Summary of comments on effective decision-making

Several commentaries suggested that Canadian Environmental Protection Act (CEPA 1999) does not effectively emphasize pollution prevention. Concern was expressed that very few pollution prevention plans are underway. The implementation of pollution prevention within CEPA 1999 is restricted by triggers that are too narrow and a lack of focus on safer substitutes. Revisions to CEPA 1999, should use pollution prevention strategies to stimulate innovation and catalyze green chemistry and cleaner production, encourage sustainable product design and the use of safer chemicals.

It was suggested that CEPA 1999 should require an evaluation of pollution prevention plans on an annual basis. These reports should be publicly available. The list and scope of substances requiring pollution prevention plans should be extended. Pollution prevention plans should be fully enforceable.

Several commentaries were generally comfortable with the current structure of pollution prevention in CEPA 1999 and its implementation. Some of these commentaries noted that it is important to distinguish between pollution prevention plans for toxic substances which are under the control of the Minister of the Environment and international air and water pollution plans where control is shared with Cabinet. Most of these commentators stressed that if regulations are to be used as a backstop for pollution prevention planning, they must be flexible enough to insure that those who have complied with pollution prevention plans are not penalized for the activities of parties who do not comply.

It was noted that both on- and off-site recycling should be considered as key components of pollution prevention.

It was noted that pollution prevention practices should actively promote the management of substances entering the environment at source.

Some commentaries noted that CEPA should provide support for the objective of keeping-clean-areas-clean. A couple of commentaries stressed that the "no degradation" principle should complement the keeping-clean-areas-clean concept and that this should be applied throughout Canada. The no-degradation principle could be incorporated into the administrative duties section in CEPA 1999 to ensure that it applies to all actions taken under the act. Another commentary suggested that areas which are clean should be provided with a rating, to be publicized and celebrated.

Some commentaries noted that there is no reason to provide specific provisions in CEPA 1999 for keeping-clean-areas-clean. Nothing in CEPA 1999 precludes the application of this principle, and in any event, in most cases, other jurisdictions would be best suited to promote this concept.

Some commentaries noted that the CEPA 1999 Scoping Paper does not adequately describe why the objective of keeping-clean-areas-clean should be included in CEPA 1999, nor does it properly describe the concept. These commentaries generally saw no need incorporate an ill-defined concept into CEPA 1999.

Several commentaries expressed the concern that the operationalization of CEPA 1999 does not adequately implement the precautionary principle nor does it protect vulnerable populations. Many of these commentaries noted that explicit language to ensure the effective protection of vulnerable populations should be included in CEPA 1999. The Pest Control Products Act was cited as a good model for incorporating explicit language for protecting vulnerable populations. The REACH model that places automatic restrictions on substances identified as being of concern was also cited as a better approach for operationalizing the precautionary principle.

Some commentaries noted that the definition and meaning of the precautionary principal needs to be updated to reflect a positive duty to protect public health and the environment. The definition needs to specifically reflect the concept of "harm" to the health of the environment and the Canadian public, rather than "damage". The phrase "cost effectiveness" should be deleted, as it is inappropriate to allow cost effectiveness considerations to mitigate the duty to protect the health of the environment and the public.

One commentary stressed the need to ensure that vulnerable elements of Aboriginal societies must be considered in the further development and implementation of CEPA 1999.

Several commentaries noted that the current operationalization in the precautionary principle is adequate. There is no evidence to suggest any problems have arisen under the current legislation and the operationalisation of the principle. Therefore, no changes in the legislation seem warranted. With respect to protecting vulnerable populations, these commentaries generally stated that CEPA currently provides adequate flexibility to use different safety margins and requirements to deal with vulnerable populations, so the Act does not need to be amended. Provisions for vulnerable populations in the Pest Control Products Act should be tested before being considered for inclusion in CEPA 1999.

Health Canada and Environment Canada need to ensure that the quality of risk assessments under CEPA is not compromised by inadequate resources or other pressures. The precautionary principle must continue to be based on rigorous, reputable and sound science.

One commentary noted that any changes in the application of the precautionary principle under CEPA 1999, should be consistent with the federal government's document, A Framework for the Application of Precaution in Science-based Decision Making about Risk, issued in 2004.

Several commentaries felt that transparency, access to information and opportunities for public participation detailed in CEPA 1999 are not adequate. Generally these commentaries stressed that CEPA 1999 is a complex and lengthy Act and that more must be done to ensure that the general public is provided with plain language explanations of the act, and that opportunities for participation and access to information are effectively communicated to all Canadians.

Several commentaries did feel that CEPA provisions relating to transparency, access to information and opportunities for public participation are adequate. However, many of these commentaries also expressed concern regarding minimal public uptake of some of these opportunities and that efforts should be made to ascertain the reasons for the minimal uptake.

Several commentaries stressed that in the CEPA 1999 Registry has yet to fulfill its potential as a tool for public information and engagement. In particular, the Registry needs a better search engine and process mapping. One commentary did state that the current Registry was adequate.

Several commentaries expressed the view that the current five-year review schedule is appropriate, primarily because of the rapid evolution of the state of knowledge pertaining to the environment and human health.

Several commentaries expressed the view that the review period should be increased from five to seven years, primarily to allow significant legislative changes to be fully implemented and fully evaluated. Some of these commentaries noted that the CEPA review cycle, if increased to seven years would be consistent with the review periods for the Canadian Environmental Assessment Act and the new Pest Control Products Act. A few commentaries suggested that a 10 year review cycle might be appropriate.

Some commentaries rejected the idea or expressed reservations about having substances, which were assessed under CEPA, managed by another department or jurisdiction. However, most commentaries did stress that where federal risk managers decide that an issue is best managed outside of CEPA, the federal government must still ensure that such decisions are fully transparent and carefully monitored, and must remain fully accountable for ensuring that the toxic substances in question are managed effectively.

Many commentaries acknowledged that identifying who is in the best position to manage a particular risk is a complex issue, in part because of the extensive legislation addressing the environment and health. Any integration and harmonization among governments and programs must include timelines for action that take into consideration the legal requirements of other relevant legislation (for example, environmental assessment procedures, approval processes).

Several commentaries expressed concern that overlap and duplication among environmental and health laws across jurisdictions can cause significant inefficiencies. These commentaries urged the federal government to use the CEPA review to work towards improving regulatory cooperation and reduction in duplication and overlap. One commentary emphasized that the failure to work cooperatively across federal departments is particularly problematic where an industry is governed by international standards. In these situations, the means to reach national environmental benchmarks set out under CEPA should include voluntary measures, best practices and incentives to complement existing international requirements.

Some commentaries noted that relying on the actions by other jurisdictions or actors is highly uncertain and should only be an option of last resort, particularly in relation to managing toxic substances.

One commentary stressed the value of a single national standard for chemicals management across Canada, under CEPA 1999. This will instill trust in the regulatory system and effectively utilize technical knowledge and government resources.

Some commentaries noted that CEPA should play a backstop role, but only when it has been demonstrated that the non-CEPA 1999 measures are not producing the desired results. In this regard, regulations should be flexible enough to avoid any adverse impact on those who have achieved the objectives. The flexibility provided in the Transportation of Dangerous Goods Act was cited as a model for building additional flexibility into CEPA 1999.

Some commentaries stated that CEPA should play a backstop role, but CEPA 1999 should be automatically invoked if there is ambiguity; the Act should take precedence. One commentary proposed that, in the case of overlapping jurisdictions, the Act with the strongest penalties (which should be CEPA 1999) should take precedence.

Some commentaries noted that the backstop concept should also ensure that duplication or overlap with existing provincial and municipal activities are avoided.

One commentary stressed that the role of CEPA 1999 as a backstop and reliance on non-CEPA measures is not supported and should not be pursued. To date, there has been no rigorous, comprehensive review of the outcomes, effectiveness or efficiencies of non-CEPA 1999 measures.

Some commentaries expressed the view that CEPA 1999 should not be amended to provide flexibility to tailor administrative and equivalency agreements to appropriate circumstances. Some of these commentaries noted that in their view the current equivalency and administrative provisions should be tightened. The inappropriate use of these agreements could hinder or undermined the effective implementation of CEPA objectives. The time period for agreements should not be extended beyond five years. CEPA should specifically require that the capacity of provincial or territorial agencies for carrying out their responsibilities under these agreements must be determined before the federal government enters into such agreements. Also, more detailed performance reporting requirements need to be incorporated into CEPA 1999.

Some commentaries noted that equivalency and administrative agreements should include accountability, transparency and public participation provisions equal to or greater than those found in CEPA 1999. The federal government must also maintain its strong presence and in particular, must monitor the program to ensure consistent levels of protection for all Canadians. The federal government must also be able to respond quickly, if the agreement is not respected.

Some commentaries did agree that CEPA 1999 should provide the flexibility to tailor administrative and equivalency agreements to appropriate circumstances. It was noted that, in accordance with the smart regulation agenda, flexibility tailored to appropriate circumstances, would allow CEPA 1999 to do a better job in avoiding duplication and overlap by taking into consideration the work and expertise of other jurisdictions. Some of these commentaries stressed that greater use should be made of equivalency and administrative agreements, while ensuring appropriate safeguards are retained.

Greater efforts must be made to engage Aboriginal peoples in effective and appropriate consultation, with adequate time to examine issues, sufficient information on which to make informed decisions, and accommodation of the concerns of Aboriginal peoples, as appropriate. Aboriginal peoples need training, human and financial resources and equipment to conduct research, to remediate environmental damage and where necessary to relocate. Lack of adequate resources will stymie efforts to take on greater responsibility for environmental matters. Recognition of the right to self-government must be accompanied by the tools necessary to fulfill this mandate. Aboriginal peoples are seeking a government-to-government relationship, which will require amendments to CEPA 1999 to reflect this approach.

An analysis of the application of CEPA 1999 within Aboriginal land claim regions is required to determine the relationship of the Act to the provisions afforded Aboriginal peoples under land claim agreements.

CEPA 1999 must include Aboriginal governments, representing First Nations, the Métis Nation and the Inuit Tapiriit Kanatami in all of its consultation procedures. Representation on the CEPA NAC must be amended to include representatives of all Aboriginal peoples in Canada, including First Nations, Inuit and Métis representatives. The gap created by the definition of "Aboriginal governments" needs to be addressed in a manner that facilitates greater participation by Aboriginal peoples.

Some commentaries stated that CEPA should address toxics at all stages in their life cycle, including toxics in products. All potential hazards, including correct disposal methods should appear on the labels of consumer products, including all cleaning and household products. Moreover, there should be a clear focus on the design of products that eliminate toxic substances, rather than managing them at the end of the product life cycle.

Some commentaries stated that there is no compelling reason why CEPA 1999, should manage toxics associated with products on a general basis or at that any immediate changes are required. Careful consideration should be given to discussing why CEPA 1999 should assume this role and if so, the implication to the Hazardous Products Act and the Canada Health Protection Act to avoid overlap and duplication.

One commentary stated that CEPA 1999, should not duplicate or overlap other federal authorities addressing the management of products. CEPA provisions for product management should be very specific and should only be made if required.

One commentary stated that CEPA should take precedence over other federal authorities for the management of products.

Some commentaries noted that CEPA 1999 must become the focal point for federal legislation on biotechnology in Canada. The regulatory capacity of Health Canada and Environment Canada must be strengthened to ensure comprehensive and effective regulation of products of biotechnology. Accurate labeling should also be part of this process to enable consumers to make informed decisions. CEPA 1999 needs to include liability measures for biotechnology products that address the environmental escape of genetically modified organisms.

Some commentaries noted that the biotechnology provisions in CEPA 1999 need to be significantly strengthened. Additionally, there is a need to provide a product approval structure as opposed to the toxicity assessment approach. Part Six in CEPA 1999 needs to require the ministers to apply the precautionary principle and provide an affirmation of proof of safety prior to the introduction into the environment and into our food supplies of products of biotechnology. CEPA 1999 must also accommodate the new Public Health Agency of Canada.

Some commentaries noted that the management of biotechnology is an issue with multiple dimensions, much of which is outside of the scope of CEPA 1999. In this context the current role that CEPA 1999 plays in assessing and managing animate products of biotechnology is appropriate. The regulation of biotechnology should be done by the various federal departments that are most familiar with the particular products requiring assessment and management. CEPA 1999 should continue to provide a backstop for products not covered under other federal legislation, but it's current authorities should not be expanded.

A couple of commentaries agreed that CEPA 1999 needs to clearly impose liability for the escape of products of biotechnology. It should also include the power to require remedial actions, including a requirement that measures to respond to unintended escapes are detailed prior to an approval for use.

There is currently a lack of environmental management regimes that apply on reserves lands. Federal government must recognize the inherent right of Aboriginal peoples to govern themselves in these matters, and must support the capacity of Aboriginal peoples to undertake the necessary work to develop the appropriate legal regimes. Aboriginal peoples fully expect that any proposals to amend CEPA 1999, particularly as they relate to Aboriginal lands, must be preceded by full national consultations with Aboriginal peoples. Specific environmental problems detailed in these commentaries include: inappropriate management of solid waste, contaminated sites, contaminated traditional food and medicines, poor water quality and waste water systems, mercury release and damage from uranium mines.

One commentary noted that CEPA 1999 must be amended to clarify that representatives of Aboriginal peoples may initiate the investigation procedures and detailed in section 17 through 22 of CEPA 1999. The definition of Aboriginal lands in CEPA 1999, should be amended as follows: "Aboriginal lands" means the asserted traditional territory of an Aboriginal people, which may be wholly or partially shared by other Aboriginal people.

A couple of commentaries noted that CEPA 1999 has been almost a total failure in providing a framework for environmental protection in the operation of federal agencies and activities on federal lands. In the absence of specific federal regulations, CEPA 1999 should require the federal departments and agencies to comply with the relevant provincial/territorial environmental legislation affecting their operations. Alternatively, CEPA should include a general offence provision in Part 9 requiring that federal agencies carry out their activities on federal lands in a manner that does not result in the release of contaminants into the environment and should establish a permitting/approval regime for activities that may have such effects.

Some commentaries noted that CEPA 1999 should encompass all of Canada. Any devolution to provinces, territories, municipalities or Aboriginal governments, should only be approved if those entities have environmental regulations that are equal to or better than those in CEPA 1999.

Some commentaries noted that closing regulatory gaps is an essential but challenging process. Care must be taken to ensure that new jurisdictional overlaps and duplications are not created. Improperly drafted regulations and other risk management measures aimed at closing the gap for federal government activities may be inappropriate for private sector activities, which would inadvertently be subject to them. In short, a wide range of approaches, some of which are outside the scope of CEPA 1999 are needed to address this problem. Where appropriate standards are established, their delivery must include capacity-building, public education and awareness and compliance promotion and enforcement initiatives.